Declarations not a backdoor to challenge resource consents
Declarations not a backdoor to challenge resource consents
Wednesday 30 March, 2022
Local authority decisions on notification of resource consent applications can be controversial, as those who consider they are affected often feel strongly about having input into the decision. Section 310(h) of the Resource Management Act 1991 (RMA) allows people to seek a declaration on any issue or matter relating to the interpretation, administration, and enforcement of the RMA, except on issues related to notification of applications. A recent Environment Court case considered the interpretation of this section.
Background
The defendant sought declarations against Thames-Coromandel District Council (TCDC) in relation to consents which TCDC had granted on a non-notified basis for events in Opoutere. The defendant alleged that TCDC had contravened conditions and made procedural errors when granting the consents, and the lack of a traffic management plan created public safety issues.
Opoutere event
TCDC granted consent for a two-day motorcycle festival, with three days of camping, for up 20,000 people. The defendant sought a declaration that TCDC were “inconsistent, negligent, and or unreasonable” by granting consent for this event.
Jurisdiction to review Council decisions
The Court considered the scope of the power to make declarations under s 310(h) and pointed out that this section does not give it the power to review a council’s decision on whether to notify a resource consent application, including the council’s assessment of whether effects were “less than minor” or whether there were any affected persons. The Environment Court considered that the defendant’s challenge was effectively a challenge to the TCDC’s notification decisions and decisions to grant the consents, so the Court did not have the power to make the declarations sought. The Court also pointed out that s 310(h) does not give it the power to effectively judicially review administrative actions under the Act as this would “effectively render the limits of the preceding powers under s 310 redundant.”
In relation to traffic management, the Court held that this was a difference of opinion between the defendant and TCDC and this should not have been raised in declaration proceedings for a non-notified resource consent.
Conclusion
The ability to challenge notification decisions and non-notified consent decisions is very limited, so those wanting to have input into resource consent applications will often look for other ways to challenge the decisions. However, the right to seek a declaration under s 310(h) cannot be used as a backdoor to challenge notification decisions or administrative decisions.
